IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 38 OF 2018

STATE

v

RAJESH PRASAD

Counsel:			: 	Ms D. Rao for State
				:	Ms S. Devi with K. Marama for Accused

Date of Summing Up 	:	1 May 2019
Date Judgment		:	3 May 2019

(Name of the victim is suppressed. She is referred to as SW) 

JUDGMENT

1.	The accused is charged with one count of rape and tried before three assessors. The information reads as follows:
Statement of Offence

RAPE: Contrary to Section 207 (1) & (2) (a) of the Crimes Act of 2009.

			 Particulars of Offence

Rajesh Prasad on the 30th day of December, 2017 at Labasa in the Northern Division, penetrated the vagina of SW, a child below the age of 13 years, with his penis.

2.	The assessors unanimously found the accused not guilty of Rape as charged. They also found the accused not guilty of Sexual Assault, the lesser offence put to them for consideration.
 
3.	I direct myself in accordance with my own Summing Up and review evidence led in trial. I pronounce my judgment as follows.

4.	The accused is charged with one count of Rape. To find the accused guilty of Rape in this case, the Prosecution has to prove beyond a reasonable doubt that the accused penetrated complainant’s vagina with his penis. 

5.	Accused denies the allegation. The case for the Defence is that the accused was never present at the alleged crime scene at the material time and that the complainant also was not present at accused’s house on the alleged date of incident. Defence Counsel also argues that the 2nd element of the offence of rape (penetration) was not established beyond reasonable doubt.  
    
6.	The Defence Counsel did not cross-examine the complainant on the basis that accused Rajesh Prasad is not the ‘uncle’ the complainant was referring to in her evidence-in-chief. Therefore, there is no dispute that the ‘uncle’ the complainant was referring to in her evidence is the accused in this case.

7.	There is also no dispute that the complainant was under the age of 13 years at the time of the alleged offence. Therefore, the only dispute in this case is in respect of penetration.  

8.	Prosecution called three witnesses, the complainant, her mother Manjula Wati and her grandmother Sam Raji. Prosecution’s case is substantially based on the evidence of the complainant. Defence called the accused and four other witnesses.

9.	The complainant testified that on 26th December, 2017, during December holidays, her mother sent her to her maternal auntie’s place at Korotari because her mother had no option but to look after her sister who was sick and admitted at Labasa Hospital. She said she travelled to Korotari by bus by herself when she was made to sit in the bus by her mother at the bus stand. When she reached Korotari, her aunty had come to the road to receive her from the bus and, upon her arrival, she saw aunty calling her mother to confirm her arrival at Korotari. She said that she spent three days at her auntie’s place.

10.	On 30th December, 2017, whilst the complainant was still at her auntie’s place, she was sleeping with her aunty and uncle. Her aunty was sleeping next to her and her uncle was next to her aunty in the same bed. It was a Saturday and early in the morning at around 5-6 a.m., aunty went to the market to sell vegetables. When aunty went to the market, uncle did something bad to her. Uncle did a R.A.P.E... She said that she learned about RAPE at her healthy living class in Year 7. She said RAPE is sec or sex.

11.	When asked to clarify, the complainant said that her uncle touched her breast and took out his hand from the breast and then put her pants down. He took out his ‘wee’ and put his ‘wee’ on her wee. ‘Wee’ is where the boys ‘wee’ from. She said she was feeling bad and she felt the itch. Uncle put the blanket down and wiped her ‘wee’. 

12.	The complainant appeared very shy and she found it difficult to express herself. She took a long time to come up with her answers while the State Counsel was struggling to get her to explain the meaning of the words she expressed.  

13.	To ease this situation, the court adjourned the proceedings for her to rest and, during the adjournment, I downloaded two diagrams from an anatomy book that depict male and female human body parts. When a diagram of body parts of man was shown to the complainant, she pointed out the penis. When she was asked to point out the wee of the female, she pointed out the vagina. She said that after doing the bad thing, uncle told her not to tell aunty what he did to her. 

14.	Despite accused’s request, she told aunty what the uncle did to her. Her complaint was neglected. When she returned home, she told her grandmother. She told the grandmother that uncle did a ‘bad thing’ to her. 

15. 	The Defence Counsel cross-examined the complainant. Complainant’s evidence was never shaken. She confirmed that she was sent to her auntie’s place by bus and that she was staying at auntie’s house at the material time. Her evidence was disputed by the Defence on the basis that an 11 year old child would not have been able to travel alone such a long distance. In my opinion, it is not impossible for her to travel by herself in a bus the way she was sent. Her mother Manjula Wati confirmed that the complainant was made to sit in the bus at the bus stand for her to be received by her aunty at the destination. Her grandmother also confirmed that the complainant was sent to accused’s house when her granddaughter Geeta Devi was hospitalised. 

16.	There are minor inconsistencies as to the exact date the complainant was sent to the accused’s house and as to when and where the complainant celebrated the New Year. They are not material inconsistencies. What is material is whether the complainant had actually been to the accused’s house and the accused was present at the crime scene at the material time. 

17.	The conduct of the complainant is consistent with the allegation. The complainant had complained to Tara Wati, the wife of the accused, and, later, when she returned home, to the grandmother Sam Raji. Tara Wati denies having received the complainant at all.  Her denial is natural in light of the serious charge her husband is facing in this case. Sam Raji however confirmed that, on two occasions, the complainant had complained to her. 

18.	There is no specific evidence as to the exact dates on which the alleged complaints were made to the grandmother. According to complainant’s evidence, the first complaint was made when she returned home from accused’s house. Grandmother had not taken the first complaint seriously. Grandmother said that she was really busy and she could not concentrate and dig into the complaint. She also said that she was concerned about family reputation and she advised complainant’s mother not to do anything in this regard. When she received the complaint for the second time, the grandmother has taken a full description of the incident.   

19.	The accused had been arrested and interviewed in May 2018 whereas the alleged incident had occurred on the 30th December, 2017. It appears that the complaint has been received by police a bit late. The State Counsel failed to elicit evidence as to why the complaint was delayed. It was later transpired that the police had received another complaint from the complainant against another uncle, Kishore Chand (who was called as a Defence witness), concerning a sexual assault. However the court cannot speculate that the present allegation had come to light along with the other allegation. 

20.	The Defence Counsel argues that the evidence of the complainant as to the alleged complaints is not consistent with that of her grandmother. 

21.	It has to be conceded that there are inconsistencies between complainant’s evidence and that of her grandmother as to the content of the complaint. The complainant had complained about a ‘bad thing’ done to her by her uncle. She had not told the full details of the ‘bad thing’. However, the grandmother in her evidence gave a full description of ‘bad things’ she heard from the complainant. It appears that the full description is based on the second detailed complaint she received. 

22.	What is material is not the content of the complaint which is not admissible in evidence but whether a complaint of sexual nature had ever been made so as to maintain complainant’s consistency. 

23.	I am satisfied that the complainant had made a prompt complaint to her grandmother and her complaint is consistent with the allegation she had later made to police. 

24.	The complainant was only 11 years old at the time of the alleged offence. She had no reason or ability to make up this serious allegation against her uncle. It was never suggested that this allegation has been fabricated either by the complainant, her mother or grandmother. It was never suggested that this allegation is a sensational fiction of a child. I am sure the complainant told the truth.

25.	The Defence called the accused and 4 other witnesses. The accused said that he was not home and he had accompanied his wife to the market to sell vegetables at the material time. His wife Tara Wati and son Krishneel was called to support his version. They also narrated the same story and said that the complainant was never present at their place during the period between 26th December 2017 and 2nd January 2018. All of them told the same story without contradictions. The story they narrated seemed too good to be true. It appeared that they were uttering a story concocted by somebody else. They all appear to have a common interest in two things, the accused’s discharge and their family reputation. 

26.	Aje, the Pundit, is also a good friend of the accused. He calls the accused grandfather. He had gone to drink grog and celebrate the New Year Eve with accused and his family on the 31st December, 2017. He is not in a position to say whether the complainant was present at accused’s house on the 30th December, 2017 or not. The last witness Kishore Chand had every reason to lie to this court as he is facing a similar charge in the magistracy based on a complaint made by the complainant.  

27.	The Defence raised the defence of alibi to support its version of denial. However, the accused had never raised his Defence at the first available opportunity. He first said that he did not say anything to police because he was shocked to know that this little girl had made such a serious allegation against him. He then said that he exercised his right to remain silent on the instructions of his counsel. He had appeared before the magistrate through a lawyer. He has not filed a notice of alibi in a timely manner enabling police to check his alibi. Tara Wati had instructed accused’s lawyer to obtain bail but she has not instructed that her husband was with her at the market at the material time. She had given her statement to police as to the alibi very late, in 2019.  

28.	Of course, the accused has the right to remain silent and his silence must not be held against him. No negative inference as to his guilt should be drawn against him for exercising his right. However his failure to raise the defence at the first available opportunity prevented the police from checking the veracity of his alibi. 

29.	Accused is not required to prove his alibi or anything at all. However, the Defence evidence as to alibi failed to create any doubt in Prosecution’s version of events. I have no doubt that the complainant was telling the truth. There is no reason for the assessors to reject the version of the Prosecution. I accept the version of the Prosecution and reject that of the Defence. 

30.	Now I turn to the issue of penetration. The complainant said that when her aunty went to the market, her uncle did something bad to her. Uncle did a R.A.P.E. . She said she learned about R.A.P.E. at her healthy living class in Year 7. She said that, to her understanding, RAPE is sec or sex.

31.	When asked to clarify, the complainant said that her uncle touched her breast and then put her pants down. Uncle took out his ‘wee’ and put his ‘wee’ on her ‘wee’. ‘Wee’ is where the boys ‘wee’ from. She said she was feeling bad and she felt the itch. Uncle put the blanket down and wiped her ‘wee’. The complainant showed the wee she referred to with the help of the diagram that was shown to her. She pointed out the penis and the vagina in respective diagrams.  

32.	I am sure, when the complainant said “wee’, she was referring to respective genital organs (penis of the accused and the vagina of the complainant). However, there is no concrete evidence for a criminal court to be satisfied that the penis of the accused had penetrated at least slightly the vagina of the complainant. The complainant said that uncle put his ‘wee’ on her ‘wee’. She did not say that uncle put his ‘wee’ in her ‘wee’. Therefore, a reasonable doubt is created as to whether the accused had penetrated complainant’s vagina. The benefit of that doubt should be given to the accused. 

33.	The Prosecution failed to prove the second element of rape. I affirm the unanimous opinion of assessors in respect of rape count and find the accused not guilty of Rape. The accused is acquitted of Rape accordingly. 

34.	However, I am satisfied that the accused had touched her breast and he had touched her vagina with his penis. Rejecting the unanimous opinion in respect of the lesser count, I find the accused guilty of Sexual Assault.  

35.	The accused is convicted of Sexual Assault accordingly.

36.	That is the Judgment of this Court  

   Aruna Aluthge
Judge
AT LABASA
3 May 2019

Solicitors: 	Office of the Director of Public Prosecution for State
Legal Aid Commission for Defence